14 December is the day for the key changes to the regulatory framework for food advertising to come fully into force. Although there are still interim procedures and transitional periods in place, there will be significant changes to how the ASA approaches health claims made in advertising for food products from this date onwards. The onus is on advertisers to ensure that they are aware of any particular transitional period which may apply to any specific claims they may wish to make.

A quick reminder; “Health” claims are those which refer to a relationship between a food or ingredient and health. “Nutrition” claims refer to the nutritional benefit of a food. General advice on the application and principles of Section 15 of the CAP Code can be found here. These principles apply equally to Section 13 of the BCAP Code.

The Advertising Codes and health and nutrition claims

The ASA has been investigating nutrition claims made for foods under CAP rules 15.1 and 15.1.1 and BCAP rule 13.4 for some time, but up until now has investigated health claims under the general rules on misleading advertising. From tomorrow, specific health claims will, in the main, be investigated under CAP rules 15.1 and 15.1.1 and BCAP rule 13.4 (and, where relevant, the rules which link to them such as CAP rules 15.7 and 15.17 and BCAP rules 13.7.1, 13.11 and 13.15). These rules reflect the fact that only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in ads. CAP Rule 15.2 and BCAP Rule 13.4.3, which relate to general health claims, will now also be applied in full.

The practical effect

Past ASA adjudications will be applicable to the extent that they relate to the interpretation of a claim. However, for the most part, when it comes to the evidence required to substantiate a health claim, the new regime will supersede previous ASA adjudications. This means that health claims which the ASA may previously have accepted may no longer be considered acceptable (as this adjudication shows) and vice-versa. Please see our AdviceOnline article Food: Health Claims here.

Any general health claims in an ad will need to be accompanied by a specific authorised health claim. ‘General health claim’ is likely to have a fairly wide interpretation; it will not just apply to claims such as “healthy” and “good for you”, but also claims like “superfood”. This requirement is stricter than the previous position when advertisers were required to hold evidence for such general claims because it requires that the specific authorised health claim is stated in the advertising copy. Please see our AdviceOnline article Food: General Health Claims here.

As ever, Copy Advice stands ready to help guide you through this difficult field, but our strong recommendation is that marketers seeking advice in relation to advertising copy which includes general and/or specific health claims for foods ensure that they make it clear within the enquiry which authorised claims are being relied on when seeking to make such claims.

If, as a result of legal advice, marketers are not relying on authorised claims, or are choosing to rely on positive opinions, or claims that the European Commission has placed “on hold” (whilst discussions take place on the best way to deal with them), they will need to explain the rationale behind the claims in their advertising copy before Copy Advice will be able to advise effectively as to the likely course the ASA would take in the event of an investigation.

If you have any enquiries regarding the application of the CAP Code please do not hesitate to contact Copy Advice. For broadcast guidance and queries about the application of the BCAP Code please contact Clearcast or the RACC.

To keep track of updates to the AdviceOnline articles which give guidance on food ads, you may like to consider following CAP on Twitter (@CAP_UK) because guidance updates are regularly published.

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